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Thursday, June 28, 2012

The
recent amendment to the Evidence Act 1950 to introduce section 114A has not
been without controversy. The Center for Independent Journalism launched an
online petition against the section last month. Its basis is the concern that
by virtue of the section presuming publication, and as such responsibility for
publications, on the part of internet intermediaries and by impeding anonymous
expression of thought, free expression on the internet would be undermined.
This has particular resonance for Malaysia in light of the way in which the
media is regulated.

Though
at first glance the argument advanced by CIJ, and other likeminded
organisations and individuals is attractive for its championing of free
expression, the subject behooves deeper consideration.

Let
me state several obvious features of the matter. The media is highly regulated
in Malaysia, to an extent that the so-called mainstream media (MSM) is no
longer of great relevance to a significant number of Malaysians. As a
consequence, Malaysians seek information and opinions on-line from on-line news
sites, blogs and the social media. Needless to say in this unregulated sphere
expression is robust, unguarded and perhaps in some cases truer. The value of
social media to disseminate opinion and information is undoubted and, in light
of how things are in Malaysia, it has become a primary means to influencing
opinions. Regrettably though it has also resulted in a plethora of anonymous
blogs and twitter timelines that routinely publish highly offensive and
defamatory content.

Over
the years we have seen bloggers and twitter users taken to court for
defamation. In the course of my dealings as a lawyer I have had occasion to
represent some litigants in such cases. The misperception that many social
media users have is that by virtue of the Government’s assurance that the
internet would not be censored, people are free to write what they wish without
being held to account for the same.

This
puts into focus the first of several key features of discussion. Throughout the
common law jurisdictions persons who publish defamatory material can be held
liable for their having done so. Publishing on the internet is no different
from publishing elsewhere in this regard and the same responsibility rests on
the author and publisher (if they are different persons) of the offending
publication.

The
question therefore arises as to whether a person should be entitled to take
advantage of technology to publish anonymously and avoid liability. From a
strictly legal perspective, I do not see why this should be the case. By this I
mean that if there were means to discover who it was that a particular
anonymous blogger, and their identity could be ascertained, then that
particular person could be made liable.

A
second feature then becomes apparent. It centres on the question of whether
legislature is permitted to enact presumptions of fact. The short answer is
that such presumptions are not as a matter of course repugnant to the law. The
statute books are replete with such presumptions. They are in themselves not
unconstitutional. The operative presumption here does not in itself undermine
the right to expression.

A question
may arise as to why it is there is a need for a presumption of publication in
light of there being powers in the hands of the authorities, the Multimedia
Commission for instance, to determine the identity of anonymous bloggers and so
forth. Private litigants do not have
access to the powers and resources of the State and for that reason are too
often at a disadvantage. For instance, over the years we have seen how public
figures have been made the subject of vicious smear campaigns, and how these
persons have been powerless to deal with these vile attacks. Seen in this
light, the practical benefit of a section in the Evidence Act that sets up a
presumption of publication cannot be denied. It should not be overlooked that
presumptions can be rebutted. The CIJ is concerned that hacking may lead to the
wrong persons being found culpable. From a strictly legal perspective, if the
hacking can be established then one would have an obvious defence.

If I
have a reservation, then it is the ambit of the provision. At a recent CIJ
forum on the subject, Jeff Sandhu, one of the panelists expressed a concerned
that the section may include within its ambit persons who provide free WIFI, as
DBKL now requires.He may have a point.
The breadth of the section is cause for concern not only for the fact that it
may lead to innocent persons being found to be liable but also for the
practical impact it will have on commerce and trade, in particular, as A Asohan
pointed out at the same forum, the thriving internet business scene.The Government may wish to reconsider the
scope of the section by reference to the declared intention underlying the
section. It is possible that while the aim of the section is not
unconstitutional, the breadth of the provision may lead it to being so.

In
fairness, it appears that it is the ambiguity of the underlying intention that
is fueling many of the concerns. The socio-political considerations are vastly
different from the strictly legal ones I have attempted to highlight. The fact
remains that a good many Malaysians do not have much faith in the “system” and
think of the institutions of the State as having been politicised. The social
media has become the principal means of spearheading meaningful reform, as it
has in many other parts of the world. Understandably, civil society is
concerned that there may be a collateral purpose to the amendment, one aimed at
stifling a burgeoning awareness of rights discourse.

Frankly,
it is a concern that cannot be dismissed outright having regard to the state of
things in the country. The last thing that Malaysia needs right now is the
stifling of political consciousness.